India: Judicial Analysis Of Order Of Abandonment

INTRODUCTION:

Intellectual Property has always been seen an exclusive set of
rights which command protection for the moral and economic rights
of the original creator. While the major emphasis of these rights
is to entrust legal protection, the rights also ensure in creating
healthy opportunities for the right holders to developing financial
assets and also gain favorable incentives for further progress.
These legal rights, most commonly in form on patents, trademarks
and copyright, protect the creativity and dissemination of their
work. Infringement has been defined as "the action of breaking
the terms of a law, agreement, and violation." Intellectual
Property rights are infringed when a product, creation or invention
protected by laws is exploited, copied or otherwise used without
having the proper authorization, permission or allowance from the
person who owns those rights. The motives for protecting the IP
rights are a matter of crucial interest to both company and
consumer. From a practical perspective "Intellectual Property
Crime" refers to counterfeited and pirated goods,
manufactured and sold for profit, without the consent of the patent
or trademark holder1; it also has been defined
as:

Criminal IP offences are also known as "IP crime"
or "counterfeiting" and "piracy".
Counterfeiting can be defined as the manufacture, importation,
distribution and sale of products which falsely carry the trade
mark of a genuine brand without permission and for gain or loss to
another. Piracy, which includes copying, distribution, importation
etc of infringing works, does not always require direct profits
from sales wider and indirect benefits may be enough along with
inflicting financial loss onto the rights holder.

Trading standards are primarily responsible for enforcing the
criminal IP laws, with support from the police, and with
investigative assistance from the IP rights owners. Private
criminal investigations and prosecutions may also be launched by
the right owners in some cases. Criminal IP offences can take place
in a variety of ways2, they include:

employees selling copies of protected works or supplying fake
goods within the working environment

company servers and equipment being used to make available
(i.e. uploading) infringing content to the internet with the
knowledge of management " using the work intranet to offer for
sale infringing products to colleagues

using unlicensed software on business computer systems with the
knowledge of management

INDIAN SCENARIO

There are over seventy Central Laws covering many offences apart
from those in the Indian Penal Code. To prevent and punish
violations under economic offences, there are large numbers of
agencies with investigative and quasi-judicial powers. As the
magnitude of economic offences is enormous, it is essential to make
rigorous laws and strengthen the regulation, investigation and
enforcement systems adequately.

IP and Cyber Crime: IP theft (copyright,
trademark) industrial / commercial secrets, cyber squatting etc.,
the cost of which runs to a few hundred billion dollars every year
in the US alone.

Technology and Crime: With increasing
e-commerce, there is an increase in cyber economic crimes. For
every economic crime, there is a cyber version with much more
potential, larger profits and lesser risks. While the e-commerce,
as a system is speedy and efficient, its speed and efficiency are
creating problems.

The Internet has made all borders and legal jurisdictions
absolutely obsolete. Criminals can remain in one jurisdiction and
commit crimes elsewhere and avoid prosecution. Therefore, a high
degree of co-ordination to prevent crime and co-operation to
prosecute and punish crime become essential especially as the
proceeds of these crimes go into further crimes including drugs and
arms. All such definitions would include all contemporary economic
crimes, would also cover the persons who are outside an
organization and would not be confined to just non-violent
white-collar crimes.

This would also include Corporations and members of professions
such as the Law, Accounting, Management etc., and would cover both
Banking and non-Banking financial frauds, violations of the Stock
Market, Smuggling, Money Laundering, and Intellectual Property
Rights (IPR) related offences, Insurance and Health frauds, IT
related offences (cyber-crimes), Telecommunication, Theft and
misuse of Credit card & identity and Corruption.

LINKS BETWEEN IPC & TERRORIST FINANCING

Law enforcement agencies have to recognize that Intellectual
Property Crime is not a victimless crime. Because of the growing
evidence that terrorist groups sometimes fund their activities
using the proceeds generated from IPC, it must be seen as a very
serious crime with important implications for public safety and
security3. The links between IPC and terrorist
financing can be categorized as follows:

Direct involvement: Where the relevant
terrorist group is implicated in the production, distribution or
sale of counterfeit goods and remits a significant proportion of
those funds for the activities of the group. Terrorist
organizations with direct involvement include groups who resemble
or behave more like organized criminal groups than traditional
terrorist organizations.

Indirect involvement: Where sympathizers or
militants are involved in IPC and remit some of the funds,
knowingly to terrorist groups via third parties. Terrorist
organizations whose sympathizers are involved in IPC and who use
some of the funds generated from this activity to support the
terrorist group. In many cases the funding is further attenuated,
involving unrecorded movements of cash via third parties.

METHODS OF FINANCING

Several cases that directly link terrorist groups with
counterfeiting and piracy activities have been reported through
various reports4. The following are some of
these:

Interpol seized US$1.2 million worth of counterfeit German
brake pads in 2004. Later, investigations revealed that these were
to be used to support the Lebanese terrorist organization
Hezbollah.

Based on evidence with FBI, the terrorists who bombed the World
Trade Center In 1993 used funds channeled from counterfeit textile
sales in New York.

It was found that Chechen rebels were financing their
operations by selling pirated CDs.

According to New York's Police Commissioner, the Madrid
train bombing incident was funded through the sale of pirated
CDs.

According to an interview, published in French daily Le
Monde, of the head of a French security agency, Afghan
terrorist groups have been found to use the proceeds of duplicates
of credit cards and counterfeit designer products.

A suspect, Faruk Aksu, who is allegedly linked to several
terrorist groups, was arrested in Turkey with US$3.2 million fake
US dollars, which he had obtained from Iraq. These dollar notes
used the paper used by the US Government and incorporated all the
security features of a real US dollar.

Al Qaeda training manuals recovered in 2002 reveal that the
organization recommends the sale of fake goods as a means of
fundraising for cells.

In testimony before the House Committee on International
Relations in 2003, Interpol's Secretary General stated that the
link between organized crime and counterfeit goods (also known as
intellectual property crime) was long established, but announced
that the international law enforcement body was "sounding the
alarm that Intellectual Property Crime is becoming the preferred
method of funding for a number of terrorist
groups."5

An intangible significant impact is seen on the long generated
goodwill and reputation of the product which ends up paying the
opportunity cost for the activity. It also has to emphasized and
looked into; as the general customer is getting affected and an
irreversible damage is being caused in the process. The companies
involved in the other hand have no clue of the transactions and
before any whiff is gained the damage has already occurred. The
underlying bottom line is that the act leaves no room for the
product to rejuvenate and this becomes the breeding criterion for
terrorist groups involved in such activities. The ripple generated
from the insurgence of the impact continues to affect and absorb
all relative industries while the main prey being film and audio
industry with all the concerned and dependent electronic
distribution channels.

While it comes to the injection of counterfeit goods into the
market for making quick money, it clearly strikes the death knell
for the product manufacturers. Surprisingly majority of the
producers and the consumer accessing / buying the product are not
aware of the defect in authenticity of the product and its impact.
The high end retails brand shopping chains which play host to the
top of the line world class goods easily fall prey to the
benevolence of goods in disguise only to later ascertain that not
only has the money generated been pooled for financing an act of
terror but also has created a dent in the lustrous market value of
the product.

NEED FOR REGULATION(S)

India inherited the present system of classification of offences
from its colonial rulers more than 140 years back, in which the
police are the primary enforcers of the law. Considering the nature
of the impact of colonial law making, suffice it to say that it is
time to reexamine and reframe the laws as appropriate to the twenty
first century Indian society and its emerging complexities. Many
countries in the world have started their own initiatives in
improving their domestic Criminal Justice Systems. England, USA and
Australia are all in the process of charting out reforms. As
societies continue to change, crimes become complex and new crimes
emerge, it is imperative for India to work out a comprehensive
Criminal Justice System, suited to the ethos of this country.

The basis for the classification of crime is that contained in
the Indian Penal Code (IPC) and the Criminal Procedure Code (CrPC).
But, over a period of time, various statutes have been added with
different provisions about evidence, burden of proof etc., and
often, the crimes themselves are not of the kind covered in the
IPC; in fact, many of the special laws relate to social inequities.
All these have only added to the burden of work on the Criminal
Justice System. Further, with the changing views of what
constitutes crime all over the world and not just in India, unless
there is a relook at the classification also, it will be difficult
to work out appropriate prevention and detention strategies for
different kinds of offences which are now clubbed together as
crime. The economic and other Offence Code would include all
economic offences, like tax fraud, money laundering, stock market
scams and also offences like cyber crimes, intellectual property
violation, etc.

The challenge lies in assigning priority of execution and
operation; as, if the options are to decide between critical
objectives like rural empowerment, healthcare, provision of medical
facilities and intellectual property code violation; there is no
scope for second thought. However this alarming situation being on
a constant rise highlights the immediate need to frame redressal
mechanism and update the present statues, as the vacuum of which is
reflected in form of billions of dollars which drastically affects
the financial and economic standard of the Country.

4 Counterfeiting and Organised Crime, Report by Union
des Fabricants, Links between terrorism and other forms of crime,
Foreign Affairs Canada and the United Nations Office on Drugs and
Crime, April 2004

In Joy Creators Pvt Ltd vs Natures Essence Pvt Ltd, CS(COMM) 632/2018, the High Court of Delhi on September 20, 2018 recognized the protection of slogans and expressions which are ordinary linguistic spoken words.

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.

To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access

No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq

No, please do not send me promotional communications from Mondaq

Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions